SAN FRANCISCO (CN) - Five corporations accused of aiding a conspiracy to force women into sexual slavery during World War II asked a federal judge on Thursday to dismiss a class action against them.
Hee Nam You and Kyng Soon Kim, two Korean women who say they were kidnapped and forced to serve as prostitutes for Japanese soldiers during the war, sued 19 defendants, including the Japanese government and its prime minister, in July.
On Thursday, five more companies - Nissan, Toyota, Hitachi, NYK Line and Nippon Steel & Sumitomo Metal USA - stepped forward to request dismissal as well.
The former comfort women say the companies provided the trains, vehicles and vessels, or materials to make them, that moved abducted women to comfort stations where they were held in captivity and forced to have sex "five to 30 times a day" with Japanese soldiers.
Arguing in support of the joined motions to dismiss, Toyota attorney Ryan Appleby echoed previous arguments that the plaintiffs' claims are time-barred and involve a "nonjusticiable" political question. That's because the claims were allegedly settled in a 1965 treaty between Japan and Korea.
Unlike the 2011 Northern District of Illinois case Holocaust Victims v. Magyar Nemzeti Bank, which found defendants concealed looted assets and therefore could be liable for actions otherwise barred by the statute of limitations, Appleby said his client did not engage in fraudulent concealment.
The attorney added that Toyota's U.S. subsidiary, Toyota Motor Sales USA, did not exist until 1957, long after the alleged war crimes took place. Attorneys for the other companies told the judge that their U.S. subsidiaries also did not exist until after the war.
However, plaintiff attorney Hume Joseph Jung said the companies are still liable for their parent companies' actions under the alter ego theory. The companies were launched using profits gained by selling goods and services to the Japanese empire that were used to enslave his clients, he argued.
Jung added the claims are not time-barred in Korea, where his clients reside.
When Alsup asked the attorney why he didn't file his lawsuit in Korea, Jung answered that a judgment by a Korean court would not be enforceable, partly because the defendant companies have no "meaningful assets" in Korea.
"That didn't stop you from suing the newspaper," replied Alsup, referring to the now-dismissed defendant, Sankei Shimbun. "They only had six reporters here. I don't buy the argument that relief in Korea would be inadequate."
Alsup said a treaty signed between the United States and Japan at the end of World War II prevents American citizens from suing Japan or its companies for wartime crimes. The judge said he is inclined to agree with the D.C. Circuit's reasoning in its 2006 ruling, Joo v. Japan, about whether such claims can be litigated in the U.S.
"The D.C. Circuit said that it would be impossible to believe that treaty, while it eliminated all claims by American citizens, somehow left open the possibility that foreigners could come to our courts here and sue even though American citizens couldn't sue," Alsup said. "That sounds pretty convincing to me."
Jung responded that because his clients are not U.S. nationals, the U.S.-Japan treaty does not prevent them from seeking relief in an American court.
"There are many cases of foreign people suing for injuries sustained overseas," said Jung. "The Supreme Court has found no statute of limitations on crimes against humanity."
After about 20 minutes of debate, Alsup turned to Nissan's motion for summary judgment in the case.
Nissan attorney Sarah Krajewski also argued that her client, a U.S. subsidiary of a Japanese company, did not exist during World War II and that the plaintiffs produced no facts to counter that contention or prove their alter-ego theory.
Alsup responded that it seems too early in the case to grant a motion for summary judgment and that the plaintiffs could request discovery to prove a relevant connection between Nissan North America and its Japanese parent.
The judge said if a "terrible Nazi organization" that existed during World War II created subsidiaries to hide their assets, a court could still hold those subsidiaries liable under the alter-ego theory.
Jung told the judge that discovery will show a link between Nissan North America and its Japanese parent, Nissan Motor Co., including how much money the parent invested in its subsidiary and who owns a majority interest in the U.S. company.
"We are in American courts and suing the American defendants, but we do believe they are funded by money invested by the Nissan parent company," Jung said.
After about 40 minutes of debate, Alsup said he would take the motions to dismiss and for summary judgment under submission.
A hearing on the plaintiffs' motion to file a second amended complaint and to conduct discovery to establish jurisdiction to sue the Japanese newspaper Sankei Shimbun is scheduled for Jan. 14, 2016.Follow @NicholasIovino
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